UK gets final warning over Phorm trials

Change the law, or we'll see you in court

Updated The UK government today came a step closer to international embarrassment over its failure to act against BT and Phorm for their secret trials of mass internet snooping technology.

The European Commission said it had moved to the second stage of infringement proceedings after the trials, revealed by The Register, exposed failings in the UK's implementation of privacy laws.

BT and Phorm intercepted and profiled the web browsing of tens of thousands of broadband subscribers without their consent in trials in 2006 and 2007.

The furore generated by the scandal forced Phorm to withdraw from the UK market, but police and the Information Commissioner's Office both declined to take any action against the firms.

Today, telecoms Commissioner Viviane Reding said: "Ensuring digital privacy is a key for building trust in the internet. I therefore call on the UK authorities to change their national laws to ensure that British citizens fully benefit from the safeguards set out in EU law concerning confidentiality of electronic communications."

The provisions of the Directive on Privacy and Electronic Communications that prohibit "unlawful interception and surveillance without the user's consent" had not been properly brought into UK law, the Commission said.

It has identified three specific failings. Firstly, that there is no independent authority to hear complaints regarding interception of communications.

Secondly, that the Regulation of Investigatory Powers Act (RIPA) allows those intercepting communications to assume consent if they have "reasonable grounds for believing" it is given. Under the Directive consent must be "freely given specific and informed indication of a person’s wishes".

Finally, RIPA's sanctions against interception only cover "intentional" snooping. The Directive does not allow for such a distinction.

The Commission's move to the second stage of infringement proceedings gives the government two months to respond to a reasoned legal opinion. If the response is unsatisfactory - and judging by Reding's statement only a change in the law would satisfy - the case will be referred to the European Court of Justice, which has powers to impose massive daily fines on governments who do not meet their legal obligations.

The Department for Business, Innovation and Skills, which has been coordinating the cross-government response to the Commission's action, had no immediate comment.

There is an explanation of Commission infringement proceedings here. ®

Update

The Home Office, which is responsible for RIPA, said: "We are firmly committed to protecting users' privacy and data.

"We are considering the Commission's letter and will respond in due course."